The Constitutional Bench has not been sitting for about one and a half months due to the failure of the judges to reach an agreement regarding the formation of the Constitutional Bench. Chief Justice Prakashmansingh Raut is preparing to select the judges in the constitutional bench through round robin process as in other benches, while the senior judges are in favor of forming the constitutional bench on the basis of seniority.

The constitutional bench gave a split verdict on the appointment of 52 constitutional officers. A constitutional bench has not been constituted since then.

On 12 July, the annual review meeting on the action plan of the Supreme Court was held. In that meeting, the subject of 'applying the round procedure in the formation of the constitutional bench as in other cases' was raised. But senior judge Sapna Pradhan Malla, the chairman of the research and planning committee, immediately stopped the matter saying that there will be no discussion on the formation of the bench in the meeting of the planning committee. 

On July 14, Chief Justice Raut convened a full court. The first agenda of which was – regarding the constitution of the constitutional bench. In the meeting, the senior-most judge Malla Sanhi cited the constitution, the order and practice of the Supreme Court and held a stand that the Gola process cannot be followed. 

Article 137 (1) of the Constitution provides for the constitution of the Constitutional Bench. In which it is said, 'There will be a constitutional bench in the Supreme Court. Such a bench will consist of the Chief Justice and four other judges appointed by the Chief Justice on the recommendation of the Judicial Council. The seniors argue that since the constitution of the constitutional bench is to be done by the Chief Justice, it cannot be taken to the Gola process by amending the rules. 

Similarly, the practice of deciding the 'roster' of 10 judges of the roll order based on the recommendation of the Judicial Council, and based on that, the Chief Justice formed a constitutional bench, started in 2074. There was a controversy when the then Chief Justice Cholendra Shamsher Jabara set aside the most senior Judge Deepak Kumar Karki and Judge Meera Khadka to hear the writ filed after the then Prime Minister KP Sharma Oli dissolved the House of Representatives. A constitutional bench was formed on the basis of seniority after other senior judges refused to sit on the bench. Since then, the constitutional bench has been formed in this order. 

Judges who boycotted the bench saying that there was judicial deviation in the then Chief Justice Jabara started the Gola process in the general case. For this, the Supreme Court based the report of the committee formed under the chairmanship of the then judge Harikrishna Karki. In other cases, the committee recommended to form a bench through the Gola process and to appoint the five most senior judges along with the Chief Justice from the 'roster' in the constitutional bench. On the basis of this report, the constitutional bench was being formed previously. Now, the Chief Justice is in favor of applying the Gola process in constitutional cases as well. 

The Judicial Council has made a 'roster' of seniors to form a constitutional bench. When Sushila Karki was the Chief Justice, the four most senior judges could not be present at the same time and after the retirement of the designated judge, the constitutional bench could not be formed even for a year.

"I had filed a writ in the Supreme Court to end this situation," says senior advocate Madhav Basnet, "the full bench of the Supreme Court issued a mandate and asked the Judicial Council to make a roster of additional judges and recommend for the formation of a bench from among them." According to the mandate, the Judicial Council recommends a 'roster' of 10 judges and a constitutional bench of the most senior is formed from it. 

The argument of the Chief Justice and the new judges is that since the judges of the Supreme Court are 'all equal', the bench should be assigned through the Gola process. The Supreme Court Bar Association has formally demanded that the constitutional bench should also be constituted through the Gola process. 

President of Nepal Bar Vijay Mishra is also of the opinion that constitutional bench should be constituted through Gola process. "It is believed that all the judges of the Supreme Court are qualified and equal," he says, "then judges should not be divided into two classes, senior and junior, by forming a bench through the round process, such a division will be removed." The 'Study Committee on Payee Management by Gola Process, 2078' formed under the coordination of the then Supreme Court judge Meera Khadka also reiterated the same. The five-member committee consisted of Justices Anand Mohan Bhattarai, Prakash Dhungana, Hari Phuyal and Nahkul Subedi. All of them were of the same opinion that the round process cannot be applied in the constitutional bench because of the provisions in the constitution itself.

After the constitutional court was blocked due to the controversy involved in the Gola process, the Constitutional Lawyers Forum has requested Chief Justice Raut and the senior-most judge Malla to meet them on Thursday to end the deadlock immediately. The team of the forum's president Omprakash Aryal, general secretary Leeladhar Upadhyay and former presidents Chandrakant Gyawali, Tikaram Bhattarai, Lalit Basnet, Ravi Khanal and Dinesh Tripathi held an hour-long discussion in Chief Justice Raut's office on Thursday.